Constitutional Law Outline
Professor Mazur, Spring 2010
Professor Mazur, Spring 2010
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I. First Amendment: Religion
A. Introduction
I. Two clauses dealing with Religion
1. Establishment clause – “Congress shall make no laws respecting an establishment of religion
a. Purpose is to prevent government from endorsing/supporting a religion
b. Incorporated into the Due Process Clause by Everson v. Board of Education.
c. More controversial than free exercise because it is directed at the government
2. Free Exercise Clause – “or prohibiting free exercise thereof”
a. Main purpose is to prevent government from outlawing or burdening a person’s pursuit
of whatever religion, beliefs, and practices he chooses. Government cannot burden one’s
belief
b. First applied to the states through incorporation into the Due Process Clause of the 14th in
Cantwell v. Connecticut.
c. Often happens when government:
i. Acts in pursuit of non-religious objectives by forbidding conduct required by a
religion (army forbidding hats but Jews required to wear yamakas according to
Jewish religion) OR
ii. Compels/encourages conduct forbidden by belief (Sherbert: awarding benefits to
jobless workers who make themselves available to work Mon-Sat à encourages
conduct that violates religious beliefs that people can’t work on Sabbath. Gvt must
exempt to avoid unintentional interference w/ religion if it can be done w/o impairing
compelling purpose.)
II. Both clauses protect freedom of religious belief and actions. Many government actions would
violate both at the same time.
III. Conflict arises when: religious group asks for gvt benefit.
1. If benefit given à Establishment problem
2. If benefit not given à could be burdening of religion
3. When these clauses conflict, Free Exercise Clause > Establishment Clause
IV. Government actions to facilitate free exercise might be challenged as impermissible
establishments and government efforts to refrain from establishing religion might be objected to
as denying the free exercise of religion.
V. Lemon Test: this is the primary test used for the establishment clause which states;
1. The government violates the Establishment Clause if the government’s primary purpose is to
advance religion, or if the principal effect is to aid or inhibit religion, or if there is excessive
government entanglement with religion.
a. Anytime the government acts to protect free exercise of religion, its primary purpose is to
advance religion; any time the principal effect is to facilitate free exercise, the
government is aiding religion.
i. Government recognized this tension is inherent in the 1st Amendment and has noted
the difficulty of finding “a neutral course between the two religions Clauses, both of
